Courts Commons^™

Lawyerless Law Development, Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark, Anna E. Carpenter

Utah Law Faculty Scholarship

The typical American civil trial court is lawyerless. In response, access to justice reformers have embraced a key intervention: changing the judge’s traditional role. The prevailing vision for judicial role reform calls on trial judges to offer accommodation, information, and process simplification to people without legal representation.

Until now, scholars have known little about judicial behavior in lawyerless courts, including whether and how judges are implementing role reform recommendations. Our lack of knowledge stands in stark contrast to the responsibility civil trial judges bear—and the discretionary power they wield—in dispensing justice for millions of unrepresented people each year. While today’s …

Reviewing Mixed Questions Of Fact And Law In Administrative Adjudications: Why Courts Should Move To “Substantially Established Facts”, Gwendolyn Savitz

Articles, Chapters in Books and Other Contributions to Scholarly Works

Courts are inconsistent in how they review mixed questions of fact and law in administrative adjudications. Many courts simply and unquestioningly review the entire mixed issue using only substantial evidence review. This grants extreme and unquestioning deference to any legal interpretation used by the agency, far more than would be available to it under the increasingly besieged Chevron doctrine, despite the fact that the adjudications being reviewed in this manner generally would not even be entitled to Chevron deference if the legal component of the mixed question were analyzed separately. Courts should therefore analyze the different components of a mixed …

Success Stories In Community Courts: Listening To Participants' Voices, Hadar Dancig-Rosenberg, Tali Gal

Cardozo Journal of Conflict Resolution

No abstract provided.

How To Undermine A Nation-State In 120 Days: Mediation And Negotiation In A Hybrid Warfare World, Christopher A. Corpora

Cardozo Journal of Conflict Resolution

The original and admittedly provocative title for this essay was "How to Take Down a State in 120 days" and the original November 2022, 20-minute presentation at Cardozo Law School was so titled. The intention behind the provocations was to demonstrate the speed of growing investment in and multi-disciplinary nature of the current hybrid war threat. We have not yet witnessed many state takedowns through this form of warfare; but we have seen states significantly undermined and captured in timelines almost as aggressive as the title suggests. We have seen authoritarian states and criminal organizations significantly weaken more vulnerable states, …

Amicus Curiae Brief Of Law Professor Suzette Malveaux In Support Of Plaintiff’S Opposition To Defendant Ultragenyx’S Motion To Dismiss: Lacks V. Ultragenyx Pharmaceutical, Inc., Suzette Malveaux

Scholarly Articles

Plaintiff alleges that Ultragenyx was conferred the benefit of Henrietta Lacks’s cell line, that Ultragenyx knew of this benefit, and that Ultragenyx unfairly retained the benefit without providing payment to the Lacks family. Moreover, Plaintiff contends that this wrongful conduct has been going on for years, within the three-year limitations period and beforehand. Thus, on the face of the complaint, Plaintiff’s unjust enrichment claims would be viable. Alternatively, Plaintiff may proceed on a theory that an unjust enrichment claim does not ripen until an accumulation of wrongful acts has occurred, which pushes accrual within the limitations period.

Amicus Curiae Brief Of Law Professor Suzette Malveaux In Support Of Plaintiff The Estate Of Henrietta Lacks’S Opposition To Defendant’S Motion To Dismiss Second Amended Complaint: Estate Of Henrietta Lacks V. Thermo Fisher Scientific, Inc., Suzette Malveaux

Scholarly Articles

Plaintiff alleges that Thermo Fisher was conferred the benefit of Henrietta Lacks’s cell line, that Thermo Fisher knew of this benefit, and that Thermo Fisher unfairly retained the benefit without providing payment to the Lacks family. Moreover, Plaintiff contends that this wrongful conduct has been going on for years, within the three-year limitations period and beforehand. Thus, on the face of the complaint, Plaintiff’s unjust enrichment claims would be viable. Alternatively, Plaintiff may proceed on a theory that an unjust enrichment claim does not ripen until an accumulation of wrongful acts has occurred, which pushes accrual within the limitations period.

Judicial Deference To Agency Action Based On Ai, Cade Mallett

Catholic University Journal of Law and Technology

No abstract provided.

Diving Into Correctional Education Program Research: A Systematic Review, Evelyn Roehn

Undergraduate Honors Theses

In the last three decades, there has been a growing interest in correctional education programming and its effects on the recidivism rates of offenders. Research has concluded that programs such as general education equivalency (GED), college credit, and trade/vocational skill-building work to reduce recidivism rates among offenders. Although current research is widely accepted among scholars, several questions remain. 1) How is recidivism defined, and how does the definition change the rates? 2) How are researchers addressing selection bias in their study, and what impact does this have on their findings? 3) How are inmates with learning disabilities and language barriers …

Making Sense Of “Commence” In The Clean Water Act’S Diligent Prosecution Bar, Isa Harrison

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

A Uniform Standard For Certifying Questions To State Courts, Bailey D. Barnes

Faculty Publications

Since the mid-twentieth century, federal courts have certified questions of state law to state supreme courts. Rather than speculate on how a state's high court would rule on a given issue, federal courts allow the state court to determine the question itself. In so doing, the federal judiciary promotes comity and consistency while discouraging forum shopping. Yet, federal courts do so at the cost of judicial economy and speedy adjudication of litigants' pending claims.

The United States Court of Appeals is divided into thirteen circuits, of which eleven exercise jurisdiction encompassing states in the Union. Each circuit, as explained in …

The Causation Canon, Sandra F. Sperino

Faculty Publications

It is rare to witness the birth of a canon of statutory interpretation. In the past decade, the Supreme Court created a new canon-the causation canon. When a statute uses any causal language, the Court will assume that Congress meant to require the plaintiff to establish "but-for" cause.

This Article is the first to name, recognize and discuss this new canon. The Article traces the birth of the canon, showing that the canon did not exist until 2013 and was not certain until 2020. Demonstrating how the Court constructed this new canon yields several new insights about statutory interpretation.

The …

Empirical Study Of The Role Of The Chinese Guiding Case System In Chinese Law, Dong Yan, Jeffrey E. Thomas

Faculty Works

No abstract provided.

Eliminating Cash Bail In Washington State—Amending Criminal Rule 3.2, Simran Kaur

Seattle University Law Review

This Note discusses the following three parts. Part I provides an overview of the cash bail system, its history, and its contemporary use in Washington state. Part II presents the effects of bail on pretrial release, analyzing low-income and racial inequalities and the adverse impacts it can have on the accused. Part III focuses on solutions and alternatives to the cash bail system, using other states as case studies.

Selective Patronage, Omari Scott Simmons

Seattle University Law Review

Contemporary academic corporate governance narratives have a blind spot. They focus on institutions, rules, regulations, processes, procedures, intermediaries, and market forces. Yet, missing in this narrative, is the impact of corporate leadership. Ignoring the “black box” of corporate leadership, particularly individual actors, renders an incomplete descriptive assessment as well as potential miscalculations. The examination of key historical figures and their corporate activism provides an important lens through which to identify potential challenges and opportunities related to the contemporary ESG movement.

Generally, this essay examines corporate leadership’s potential to address socio-political issues through the prism of Civil Rights Movement activism. Specifically, …

Promoting Corporate Diversity: The Uncertain Role Of Institutional Investors, Jill Fisch

Seattle University Law Review

Two developments are having an impact on corporate decisions. One is the increased engagement by institutional intermediaries and a shift in the focus of that engagement from corporate governance to environmental and social issues. The other is a heightened societal awareness of diversity, equity, and inclusion (DEI) issues, particularly the importance of diversity in corporate leadership. This Article considers the intersection between the two. It describes how institutional investors have focused their attention on increasing diversity in corporate leadership, the potential motivations for that focus, and the impact of that focus, to date. It highlights the tensions that result from …

America’S Hidden Citizens: The Untold Stories Of The Unconscionable Deportations Of Its International Adoptees, Halley Cody

Seattle University Law Review

This Note addresses how the U.S. should rectify the harms it has perpetrated on non-citizen adoptees by amending the current deportation statutes to prevent their deportation. Part I addresses the history of adoption in the U.S. and related effects on immigration law. Part II highlights the stories of Adam Crapser and Philip Clay, who were adopted by American families who failed to naturalize them as minors, and who were subsequently deported after they sustained criminal records. Part III examines the policy goals behind deportation as a consequence of criminal convictions, as well as remedies instituted to prevent unwarranted deportation and …

Inadequate Privacy: The Necessity Of Hipaa Reform In A Post-Dobbs World, Katherine Robertson

Seattle University Law Review

Part I of this Comment will provide an overview of HIPAA and the legal impacts of Dobbs. Part II will discuss the anticipatory response to the impacts of Dobbs on PHI by addressing the response from (1) the states, (2) the Biden Administration, and (3) the medical field. Part III will discuss the loopholes that exist in HIPAA and further address the potential impacts on individuals and the medical field if reform does not occur. Finally, Part IV will argue that the reform of HIPAA is the best avenue for protecting PHI related to reproductive healthcare.

The Disability Docket, Jasmine E. Harris, Karen M. Tani, Shira Wakschlag

American University Law Review

The monumental changes emanating from the contemporary Supreme Court have now generated abundant commentary—but it remains possible to glean new insights if we review the Court’s work from an alternative perspective, one that does not often inform mainstream accounts. Drawing on insights from Disability Legal Studies and other critical approaches to law, as well as from the trenches of disability advocacy and civil litigation, this Article applies a “disability lens” to the Supreme Court’s 2021 and 2022 Terms. Our review of the Court’s published decisions and broader docket suggests three themes. We highlight (1) the role of disability cases in …

The Absurd Reach Of A "Colorblind" Constitution, David Hinojosa, Genevieve Bonadies Torres

American University Law Review

Affirmative action has long spurred debates over whether the Equal Protection Clause and subsequent civil rights legislation were intended to permit policies aimed at disrupting racial hierarchies, dismantling systemic discrimination, and ensuring equal opportunity for Black people and other historically marginalized groups. The current lawsuits pending before the Supreme Court challenging affirmative action admissions programs at the University of North Carolina at Chapel Hill (UNC) and Harvard College are no exception. Like prior lawsuits, the plaintiff in both cases—Students for Fair Admissions (“SFFA”)—and its amici seek to turn back the clock on racial diversity at selective universities by urging the …

How To (Not) Do Things With Judicial Opinions: Minding The Performative Power Of Facts And Dicta, Mb Beasley

University of Colorado Law Review

"Three generations of imbeciles are enough."l These words of Justice Oliver Wendell Holmes are some of the most infamous and evocative penned from behind the bench of the Supreme Court of the United States. Beyond the feelings of revulsion reading the opinion causes, the facts that Justice Holmes declared to be true and the dicta he used to bolster the Court's holding in Buck v. Bell helped to create the social world we live in today and continue to affect it. Though previous scholarship has recognized the importance of acknowledging the performative power of words in the legal field, little …

Sounds Of Silence: A Thematic Analysis Of Victim Impact Statements, Tali Gal, Ruthy Lowenstein Lazar

Lewis & Clark Law Review

The Victim Impact Statement (VIS) is a legal document that crime victims submit to the court as part of the sentencing stage, informing the court about the harms they have suffered. The VIS enhances victims’ sense of procedural justice, voice, and inclusion in the process, as well as their overall wellbeing. At the same time, their use raises concern about defendants’ due process rights. The Article argues that VISs make a novel contribution to the criminal proceeding, beyond their formal goals of providing information to the court about the impact of the crime on its victims. Using a thematic analysis …

Some Realism About Choice-Of-Law Statutes And The Common Law: The Oregon Example, John T. Parry

Lewis & Clark Law Review

Choice-of-law doctrine presents perpetual change. Common law doctrine is the primary driver of these changes, but change and reform need not come from common law alone. As Robert Leflar once observed, “it should not make much difference whether a governing choice-of-law rule . . . is found in the common law or in a statute. The same rule might be formulated in either way.” This Article assess the utility of choice-of-law statutes, on their own merits and as a substitute for common law reform. The Article begins by surveying the choice-of-law landscape, with its twin problems of multiplicity of methods …

Judicial Independence And The Rule Of Law, D. Brooks Smith

Lewis & Clark Law Review

No abstract provided.

The Terms Of Their Deal: Revitalizing The Treaty Right To Limit State Jurisdiction In Indian Country, Dylan R. Hedden-Nicely

Lewis & Clark Law Review

For over 200 years, the “whole course of judicial decision” in the United States has recognized that American Indian tribes possess inherent sovereignty to govern their lands and people. Federal recognition of that sovereignty was memorialized in countless treaties, congressionally ratified agreements, and executive orders setting aside reservations throughout the United States. Throughout that same period, and with only minimal exception, the judiciary faithfully applied those treaties to protect tribal property rights, recognize tribal sovereignty, and bar states from imposing jurisdiction within Indian Country.

The jurisprudence in this arena has shifted, however, over the past few decades. Although the Supreme …

Juvenile Competency Restoration, David R. Katner

Lewis & Clark Law Review

Despite legal competence presumptions about juveniles facing delinquency charges, tens of thousands of forensic mental health evaluations challenge the status of court-involved children in the United States each year. Researchers now find mental health disorders prevalent among juveniles in the justice system, with up to 70% having a diagnosable mental health problem. It is inappropriate to think of adolescents as younger versions of adults whose behaviors can be viewed through the same lens as adult behaviors. The Article will explore some of the causes and conclusions about why many juveniles are not competent and why many of them may not …

Court Reform And The Promise Of Justice: Lessons From Reconstruction, David H. Gans

Lewis & Clark Law Review

The Supreme Court is broken. How should we fix it? This Article argues that Reconstruction, a period in American history when the role of the Supreme Court in American life was hotly debated and Congress repeatedly took steps to reform the courts, provides important and underappreciated lessons.

Reconstruction’s model makes clear that when the Supreme Court runs roughshod over constitutional rights, Congress need not sit on the sidelines. Rather, the Constitution gives it powerful tools of reform. Congress can (1) change the composition of the Court, (2) alter its jurisdiction and regulate its proceedings, and (3) use its express enforcement …

The Political Ramifications Of Judicial Institutions: Establishing A Link Between Dobbs And Gender Disparities In The 2022 Midterms, Udi Sommers, Or Rappel-Kroyzer, Amy Adamczyk, Lindsay Lerner, Anna Weiner

Publications and Research

In the American system of government, courts are designed to operate within the legal sphere, with limited political interference. Is it possible, though, that a behavior that is at the heart of the political process can be influenced directly by a judicial decision? Focusing on voter registration big data for the universe of voters in North Carolina around the time of Dobbs v. Jackson Women’s Health Organization, the authors assess the roles of gender, political party affiliation, and age in voter registration. North Carolina is the only state whose voter registry has the necessary granularity over time and information needed. …

Originalism And The Meaning Of "Twenty Dollars", Michael L. Smith

Faculty Articles

Originalism claims to provide answers, or at least assistance, for those hoping to interpret a Constitution filled with wide-ranging, morally loaded terminology. Originalists claim that looking to the original public meaning of the Constitution will constrain interpreters, maintain consistency and predictability in judicial decisions, and is faithful to ideals like democratic legitimacy. This essay responds with the inevitable, tough question: whether originalism can tell interpreters what the Seventh Amendment's reference to "twenty dollars" means--both as a matter of original meaning and for interpreters today.

While this appears to be an easy question, I demonstrate that rather than telling modern legal …

Vested Patents And Equal Justice,, Adam J. Macleod

Faculty Articles

In a time of renewed interest in equal justice, the vested patent right may be timely again. Vested patent rights helped marginalized Americans to secure equal justice earlier in American history. And they helped to make sense of the law. Vested patent rights can perform those tasks again today.

The concept of vested rights render patent law coherent. And it explains patent law 's interactions with other areas of law, such as property, administrative, and constitutional law. The vested rights doctrine also can serve the requirements of equal justice, as it has several times in American history. Vested rights secure …

"Grossly Negligent Utilities," "Unimaginable Property Damage" And The Scope Of Liability Insurers' Duty To Indemnify Subrogated Property Insurers - Probative And Empirical Inferences From Courts' Divided Subrogation And Indemnification Decision, Willy E. Rice

Faculty Articles

Each year, extreme weather, natural disasters and allegedly "grossly negligent" investor-owned utilities concurrently destroy property, persons and lives. In the wake, billions of dollars are lost. Given utilities' general immunity under the judicially created filed-rate or filed-tariff doctrine, residential and commercial owners are precluded from filing ordinary negligence actions against utilities. Thus, many injured consumers try to settle their property-loss claims with their insurers. Some property insurers satisfy the "make-whole" doctrine and cover all losses. Most insurers, however, refuse to settle any claim. Or, they partially compensate the insureds. Yet, an overwhelming majority of property insurers are increasingly filing subrogation …